The U.S. Consumer Product Safety Commission (CPSC) has long prioritized protecting children’s safety as it relates to the use of consumer products, and that commitment is clear with the agency’s recent activity around secondary markets.
Removing all recalled products from the market has always been a challenge for manufacturers and retailers, especially when it comes to communicating with consumers who have purchased a product. But those difficulties have only escalated with the growing popularity of secondary markets such as online marketplaces, where manufacturers are yet another degree removed from the consumers using their products.
In an expansion of manufacturer liability, the CPSC now seems to be indicating that manufacturers are responsible for monitoring secondary markets and ensuring that consumers are aware that products that appear on those markets may be subject to a recall. Additionally, the companies that operate these secondary marketplaces may also find themselves responsible for policing their platforms and removing postings about recalled products.
In the most recent instance, CPSC Chair Alex Hoehn-Saric sent a letter to the manufacturer of an infant sleep product and the company that runs a popular online marketplace, calling on them to take immediate action to remove the hazardous product from consumers’ homes and secondary markets. The infant sleep product was initially recalled in 2019 after its use resulted in several infant deaths, and the CPSC and the company re-announced the recall in January 2023 after infant deaths from its use continued to occur.
Hoehn-Saric’s letter to the CEO of the online marketplace addresses the specific infant sleep product, but it also urges the company broadly to “prevent the listing of recalled and violative products” on the marketplace platform. The letter clearly outlines that the CPSC believes those who operate secondary markets have a duty to prevent the listing and sale of recalled products.
This will increasingly create more risks for manufacturers and companies who operate secondary marketplaces, especially as the CPSC continues its efforts to make the public aware of recalled products. Hoehn-Saric’s April letter was covered in major news publications around the U.S., and the CPSC has been explicit in its emphasis on directly notifying consumers of product recalls when possible.
Next steps for manufacturers, retailers and other stakeholders
As the CPSC continues to leverage the tools at its disposal — including direct notice to consumers, unilateral press releases, and civil penalties — manufacturers, retailers and other stakeholders should assess their relationship with the agency. Are they doing enough to maintain open communications with the CPSC and to align their practices with the agency’s emphasis on transparency with consumers?
Product recalls are not a question of if, but of when. While the media and consumers will inevitably become aware of the recall through digital channels and social platforms, manufacturers should act swiftly to proactively outreach to consumers across all affected markets. This proactive approach ensures that the recall narrative is controlled and communicated correctly, emphasizing clear corrective actions and outlining the necessary next steps. It is in the best interest of manufacturers and retailers to update their recall, crisis, and communications plans for the modern recall process. And if your company previously thought they might not be liable in the case of a product recall, it may be time to re-evaluate that belief as the CPSC – and other regulators – expand their purview of liability.
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